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9 Many roads to justice

Transnational prosecutionsand international supportfor criminal investigations inpost-conflict Guatemala

Naomi Roht-Arriaza and Almudena Bernabeu

9.1 Introduction

In November 2006, a local trial court in Guatemalas capital ordered the arrestof the countrys ex-President, Oscar Meja Vctores, along with ex-DefenceMinister Anbal Guevara, ex-Police Chief Germn Chupina, and ex-head of theSecret Police Pedro Arredondo on charges of genocide, torture, enforceddisappearances, arbitrary detention and terrorism.1 The defendants, togetherwith two others whose arrest warrants were not executed, were deeply impli-cated in the conceptualization and execution of a repressive state strategy thatresulted in the deaths of 200,000 Guatemalans and the destruction of over 400villages. Although the arrest order was carried out through a Guatemalan court,it was issued by a Spanish judge,2 Santiago Pedraz. Judge Pedraz of Spains

Audiencia Nacional3 issued the warrants in July 2006, followed by formalextradition requests. He based Spanish jurisdiction over crimes committed byGuatemalans in Guatemala on a Spanish law that allows universal jurisdictionover certain international crimes.

Meja holed himself up in his house and the secret police chief fled, while theex-defence minister and the ex-police chief were held in a military hospitalunder guard. This case represents the first time members of the military highcommand were affected by any legal action against them, and one of a handfulof cases where any Guatemalan military officer has been subject to judicialproceedings.4 After over a year in detention, the defendants were freed when

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1 Elas, J, Tres Militares y un Civil Guatemaltecos, en el Banquillo, El Pas (Spain), 14November 2006. Available online at www.elpais.com/articulo/internacional/militares/civil/guatemaltecos/banquillo/elpporint/20061114elpepuint_4/Tes/.

2 Ministerio de Justicia, Juzgado Central de Instruccin No 1, Audiencia Nacional,Diligencias Previas 331/1999-10, 7 July 2005 (Spain). Available online at www.cja.org/downloads/Guatemala_Judge_Pedraz_Request_for_Extradition.pdf.

3 TheAudiencia Nacionalhears cases involving drug smuggling, terrorism, state corruptionand international crimes that cannot adequately be dealt with at the level of provinces andautonomous communities. Although divided into chambers, it is roughly equivalent to aUS district court.

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Guatemalas Constitutional Court (GCC) decided on 12 December 2007 thatit would not honour Spanish arrest warrants or extradition requests.5 The courtheld that Spanish courts did not constitute a competent authority because

Spain did not have jurisdiction over events that took place in Guatemala; theeffort to exercise universal jurisdiction was unacceptable and an affront toGuatemalas sovereignty. The court added that the charges were related topolitical crimes and thus not extraditable, and that Spains participation in the1980s Central American peace process meant that it was bound by the commit-ments made by the government and the insurgents that an official truthcommission would have no judicial effects. Given that commitment, the GCCconcluded, it would be inconsistent for Spain to now seek to prosecute crimesarising out of the regions civil conflicts.

The problem of near-complete impunity for crimes committed duringperiods of repression and internal armed conflict is not unique to Guatemala.

The powerful military and civilian figures who order such crimes usually retaina large amount of powerde jure or de factoeven after the conflict ends orthe government changes and are singularly uninterested in criminal investi-gations into the past. In contrast, the post-conflict state tends to be weak, withlimited resources and a culture of corruption and self-dealing among stateauthorities. Moreover, in Guatemala as elsewhere, post-conflict military andparamilitary networks have mutated into criminal networks, engaged in drugrunning, human trafficking and similar violent enterprises, with a degree ofimpunity similar to that enjoyed by former military officials in human-rights-related cases.6

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Many roads to justice: post-conflict Guatemala 185

4 There have been high-profile trials of military officers in the killings of Bishop Juan Gerardiand anthropologist Myrna Mack. The Mack case, after over a dozen years, resulted in theconvictions of three officers, one of whom promptly went into hiding. The sentence isat Corte Suprema de Justicia, Recurso de Casacin Conexados 109-2003 y 110-2003,15 January 2004. Available online at www.derechos.org/nizkor/guatemala/myrna/myrnacs.html. In the Gerardi case, the Supreme Court upheld the convictions of two officers inJanuary 2006. See Conie Reynoso, Confirman Sentencia: Contina Pena de 20 Aosde Crcel para Sindicados, Prensa Libre, 14 January 2006. Available online at http://prensalibre.com/noticias/Confirman-sentencia_0_126588023.html (accessed on 15 March2011). For an excellent description of the Gerardi case, see Goldman, F, The Art of Political

Murder: Who Killed the Bishop? New York: Grove Press, 2007. A handful of civil patrollers,members of paramilitary groups created and controlled by the army, have also beenconvicted of murder in Guatemalan courts, as has one colonel for a disappearance case. Butas detailed in this chapter, by and large the prosecutors office has not pursued cases arisingout of the armed conflict, and judges have been intimidated, threatened or bought off.

5 Sentencia del 12 de Diciembre de 2007, Corte de Constitucionalidad (Guatemala),Expediente 3380-2007, Audiencia Nacional de Espana. Available online at www.cc.gob.gt/siged2009/mdlWeb/frmConsultaWebVerAnexo.aspx?St_DocumentoId=813917.3380-2007.pdf&St_VersionDocumentoId=551055&St_Anexos=1.

6 See Calderon, E, Capturan a Ex Militares,La Prensa, 9 November 2006. Available onlineat www-ni.laprensa.com.ni/archivo/2006/noviembre/09/noticias/internacionales/155170.shtml.



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Much of the international institution-building over the last two decades inthe field of human rights and international humanitarian law has been aimedat overcoming the impunity of powerful, untouchable actors. An emerging

international norm7

holds that when large-scale humanitarian violations havebeen committed, action must be taken to deal with the past, including measuresto allow victims to find out what happened to their loved ones, to sanctionthose responsible and to provide redress. The International Criminal Tribunalfor the Former Yugoslavia (ICTY) and the International Criminal Tribunal forRwanda (ICTR) were built on the idea that only an international prosecutionand trial would have the ability and legitimacy to try high-ranking perpetrators,including heads of state. Similarly, the International Criminal Court (ICC) wasfounded out of concern that states would be unwilling or unable to prosecutepowerful actors domestically, and that therefore a complementary forum wasneeded. However, the experience of the ICTY and ICTR, while positive in many

ways, soon gave rise to criticism that the tribunals were enormously expensive,remote from the societies where the crimes took place, and did not help torestore or create viable national justice systems.8

Hybrid tribunals, combining national and international law, procedure andpersonnel, seemed the appropriate response, and variants on such hybrid courtswere created in Sierra Leone, Cambodia, East Timor and Kosovo. In particular,hybrid courts are theorized to be better at creating legitimacy and relevance forlocal audiences, embedding international legal norms in national legal systems,and training local lawyers and judges to use these norms and to carry outcomplex criminal investigations, all at a lower cost than international tribunals.9

Initial evaluations of these courts showed varied results. While the Sierra LeoneSpecial Court was relatively successful in its outreach to the local society, on aper case basis it was still quite expensive and the results vis--vis local legacyare still unclear.10 The other hybrids were seen, by and large, as less successful,although in the Cambodia and Bosnia cases it is still too early for definitiveassessments.11 Still, even assuming unequivocal success, setting up hybrids isan expensive and time-consuming proposition, and one unlikely to be used in

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186 The Role of Courts in Transitional Justice

7 See, e.g. UN Security Council, Report of the Secretary-General, The Rule of Law andTransitional Justice in Conflict and Post-Conflict Societies, S/2004/616, 23 August 2004. See

generally Mallinder, L, Can Amnesties and International Justice be Reconciled?,International Journal of Transitional Justice, vol 1, 2007, pp 208 ff.

8 Stover, E and Weinstein, H M, My Neighbor, My Enemy: Justice and Community in theAftermath of Mass Atrocity, Cambridge: Cambridge University Press, 2004 (providing adetailed look at this problem).

9 See generally Dickinson, L, Note, The Promise of Hybrid Courts,American Journal ofInternational Law, vol 97, 2003, pp 295 ff; and Higonnet, E, Restructuring HybridCourts: Local Empowerment and National Criminal Justice Reform,Arizona Journal ofInternational & Comparative Law, vol 23, 2006, pp 347 ff.

10 See Dickinson, L, Remarks, Justice Should be Done, But Where? The Relationshipbetween National and International Courts,ASIL Proceedings, vol 101, 2007, pp 297299.

11 Dickinson, fn 10 above.



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many situations where the government is unwilling to support it or the inter-national community does not provide adequate resources.

The Guatemalan case suggests another way to hybridize prosecutions in the

face of disfunctional national justice systems and rampant impunity. Withregard to the security forces high command, cases for genocide, torture,massacres (extrajudicial killing) and enforced disappearance have been broughtsimultaneously in national courts in Guatemala, Spain and Belgium.12 Victimsgroups have pursued a combined inside and outside legal strategy, pushingfor domestic prosecutions for genocide, while also focusing on transnationalprosecution based on universal jurisdiction in other states national courts.The effort to obtain witness testimony and extradition of the defendants inthe transnational cases has led to considerable litigation in Guatemalancourts on international law issues. At the same time, an agreement betweenthe Guatemalan Government and the United Nations in 2006 created the

International Commission against Impunity in Guatemala, or ComisinInternacional Contra la Impunidad en Guatemala (CICIG), which looks into theworkings of current clandestine groups and pushes for their investigation andprosecution by local prosecutors in the local courts. A third mechanism,prosecutions for visa fraud of rights violators found in the United States, hasalso played a significant role in efforts to obtain justice for the crimes of theearly 1980s in Guatemala. Among them, these efforts aim to impel the localprosecutors and courts into action against impunity, with international supportand oversight.13

This chapter will first briefly describe the background of the Guatemalan

conflict and the evolution of the transnational cases against the military highcommand. It will then focus on some of the legal strategy issues involved andon the gains and losses of this transnational networking approach to combatingimpunity. In particular, it will look at how the multinational legal team,working simultaneously in the Spanish and Guatemalan courts on differentaspects of the case, has allowed for learning and training opportunities for thelawyers involved, has forced local courts to engage with international law, andhas tried to use the power of foreign courts to leverage domestic processes. It

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12 The Belgian cases involve the deaths of two Belgian priestsSerge Berten and Walter

Voordeckersduring the early 1980s, presumably at the hands of security forces. Familymembers of the victims brought a case in Belgian courts in January 2001 under Belgiumsthen-expansive universal jurisdiction law. The case remained open after the law wasamended in 2003. See Roht-Arriaza, N, The Pinochet Effect: Transnational Justice in the Ageof Human Rights, Philadelphia: University of Pennsylvania Press, 2005, ch 7.

13 A third strategy, also important in the Guatemalan context, involves the role of the Inter-American Commission and Court of Human Rights in pushing for an end to impunity andawarding redress to some victims. However, a full discussion of the role of the Inter-American system is beyond the scope of this chapter. For more information, see DueProcess of Law Foundation, Victims Unsilenced: The Inter-American Human Rights System andTransitional Justice in Latin America, Washington DC: Due Process of Law Foundation,2007. Available online at www.dplf.org/uploads/1190403828.pdf.



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will consider the content and impact of the Guatemalan and Spanish jurispru-dence generated by the case and its current prospects. It will then describe themandate and goals of CICIG and of the fraud cases in the United States, to con-

clude with some initial thoughts on how these initiatives might complementeach other and serve as an example elsewhere.

9.2 The context and the Spanish proceedings

Guatemalas internal armed conflict began in 1960 and ended officially in 1996.Over that period, according to the UN-sponsored Commission on HistoricalClarification (CEH), some 200,000 people were killed, over 90 per cent of themby the military. Some 40,000 were the victims of enforced disappearance.14 Thebulk of the atrocities were committed in the late 1970s and early 1980s; thevast majority of the victims were Mayan indigenous people who were considered

to be the support base for a guerrilla movement. The CEH found that in at leastfour specific areas of the country, the army had committed acts of genocide.The CEHs rationale, adopted by complainants in the genocide cases, was that:

It is very important to distinguish between the intent to destroy a groupin whole or in part, that is, the positive determination to do so, and themotives of such an intent. In order to determine genocide, it is onlynecessary to demonstrate that there exists an intent to destroy the group,regardless of motive. For example, if the motive of the intent to destroy anethnic group is not a racist orientation but only a military objective, thecrime may nevertheless be understood to be genocide.15

However, despite the fact that a 1996 amnesty law specifically excludes geno-cide, forced disappearance, torture and other international crimes from itsambit,16 no charges were ever filed against the organizers and planners of thecampaigns. To this day, less than a handful of cases arising out of the internalarmed conflict have ever been prosecuted, and most of those involve leaders ofthe paramilitary militias (civil patrols) instituted by the army.

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14 Comisin para el Esclaracimiento Histrico (CEH),Guatemala: Memoria del Silencio, vol 3(1999), 1252. Available online in Spanish at http://shr.aaas.org/guatemala/ceh/mds/

spanish/. The summary and recommendations, as well as a discussion of the genocide, areavailable in English at pp 108123. Available online at http://shr.aaas.org/guatemala/ceh/report/english/conc2.html.

15 CEH, Guatemala: Memoria del Silencio, vol 3. fn 14 above, 855 (quoting the Conventionon the Prevention and Punishment of the Crime of Genocide (1948), Art II, 78 UN TreatySeries 277 (1951), which defines genocide as a series of acts, including killing and creatingconditions of life aimed at the physical destruction of victims, when committed with theintent to destroy, in whole or in part, a racial, religious, national or ethnical group assuch).

16 El Congreso de la Repblica de Guatemala, Ley de Reconciliacin Nacional, Decreto no145-1996, 27 December 1996, Art 8. Available online at www.acnur.org/biblioteca/pdf/0148.pdf.



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Given this panorama, in December 1999, Nobel Peace Prize winnerRigoberta Mench and others brought a complaint in the Spanish Audiencia

Nacional17 alleging genocide, torture, terrorism, summary execution and unlaw-

ful detention perpetrated against Guatemalas Mayan indigenous people andtheir supporters during the 1970s and 1980s. The complainants rationale forthe genocide charges included the targeting of Mayans as an ethnic group. Itwas also based, following a gloss on the definition of genocide accepted by the

Audiencia in earlier cases involving Chilean and Argentine defendants, on theintended elimination of a part of the Guatemalan national group due to itsperceived ideology.18 Among the events underlying the complaint was themassacre of Menchs father and 35 other people in the 1980 firebombing ofthe Spanish embassy, the killing or disappearance of four Spanish priests, anda large number of rural massacres, rapes, cases of torture and enforced dis-appearance. The complainants grounded Spanish jurisdiction on Article 23.4

of the Organic Law of the Judicial Branch (LOPJ).19 That provision allows forprosecution of certain crimes committed by non-Spaniards outside Spain,including genocide, terrorism and other crimes recognized in internationaltreaties ratified by Spain. On 27 March 2000, Investigating Judge GuillermoRuz Polanco of theAudiencia Nacionalof oaccepted the Guatemalan complaintand agreed to open an investigation.20 In reaching that decision, the judgenoted that several of the victims were Spanish and that the Guatemalan courtshad failed to investigate the crimes.21

The Spanish Public Prosecutors Office, at the time in the hands of theconservative Popular Party, appealed the judges jurisdiction.22 An appeals panel

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17 See explanation in fn 3 above.18 See Auto de la Sala de lo Penal de la Audiencia Nacional confirmando la jurisdiccin de

Espaa para Conocer de los Crmenes de Genocidio y Terrorismo Cometido Durante laDictadura Argentina (Decision (Auto) of the Full Penal Chamber Confirming SpanishJurisdiction Over the Crimes of Genocide and Terrorism Committed During theArgentine Dictatorship), Appeal No 84-98, 3rd Section, File 19/97 from JudicialChamber 5, Autos (Audiencia Nacional, 5 November 1998) (Spain). Available online atwww.derechos.org/nizkor/arg/espana/audi.html (authors translation); Auto de la Sala de loPenal de la Audiencia Nacional Confirmando la Jurisdiccin de Espaa para Conocer de losCrmenes de Genocidio y Terrorismo Cometido Durante la Dictadura Chilena (Decision(Auto) of the Full Penal Chamber Confirming Spanish Jurisdiction to InvestigateGenocide in Chile), Appeal No 173/98, 1st Section, File 1/98 from Judicial Chamber 6(Audiencia Nacional, 5 November 1998) (Spain). Available online at www.derechos.org/nizkor/chile/juicio/audi.html (authors translation). See also the English translation of thedecision regarding Chile in Brody, R and Ratner, M (eds), The Pinochet Papers: The Caseof Augusto Pinochet in Spain and Britain, The Hague: Kluwer Law International, 2000.

19 Ley Orgnica 6/1985 de 1 de Julio, del Poder Judicial,Boletn Oficial del Estado, 1985, p 157.Available online at http://noticias.juridicas.com/base_datos/Admin/lo6-1985.l1t1.html.

20 Juzgado Central de Instruccin No 1, Audiencia Nacional, Madrid, Diligencias Previas331/99, Auto (Decision) on 27 March 2000 (on file with authors).

21 Auto (Decision) on 27 March 2000.22 See Roht-Arriaza, fn 12 above, ch 1. The Public Prosecutors Office dropped its opposition

to this and other universal jurisdiction cases when the Socialist Party assumed office. See



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of theAudiencia Nacional, and then the Spanish Supreme Court, found that theSpanish courts had no jurisdiction. The Supreme Court held, by a vote of eightto seven, that customary international law required a link to the forum state

when universal jurisdiction was not grounded in specific treaty provisions orauthorized by the United Nations.23 Thus, only those cases involving Spanishcitizens could proceed. In September 2005, Spains highest tribunal, theConstitutional Tribunal, reversed.24 The Tribunal began with the plain lan-guage and legislative intent of Article 23.4 of the LOPJ. As the ConstitutionalTribunal pointed out, the law itself establishes only a single limitation: thesuspect cannot have been convicted, found innocent or pardoned abroad. Itcontains no implicit or explicit hierarchy of potential jurisdictions and focusesonly on the nature of the crime, not on any ties to the forum; it establishesconcurrent jurisdiction. Given the absence of textual support for a restrictiveinterpretation of the law, such a construction would be overly strict and

unwarranted given the grave nature of the crimes. The tribunal re-opened thecase for all complainants, including large numbers of Guatemalans who weresurvivors or family members of massacre victims.25 The full case, focusing ongenocide, could then go forward.

The next step in the reopened case, which was assigned to Judge SantiagoPedraz, was to take the statements of the suspects, a procedure designed toallow defendants to tell their side of the story before any arrest warrants wereissued. Judge Pedraz, following long-established rules for taking statements inanother state through a rogatory commission, worked through a Guatemalanjudge to set up the dates, and the judge, along with the Spanish prosecutor,

travelled to Guatemala. The defendants apparently did not see much advantageto telling their side of the story; they filed extraordinary writs ofamparo beforethe local courts claiming their appearance would violate their constitutionalrights. In most Latin American countries, the ability to challenge governmentaction in violation of constitutional rights, known asamparo, is a cornerstoneof individual rights, and the defendants made constant use of the procedurefrom this point on.26 At this time as well, the Center for Justice and

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Amnistia Internacional, La Audiencia Nacional condena a el ex militar argentino AdolfoScilingo por Crmenes de Lesa Humanidad, 19 April 2005. Available online at

www.es.amnesty.org/noticias/noticias/articulo/la-audiencia-nacional-condena-a-el-ex-militar-argentino-adolfo-scilingo-por-crimenes-de-lesa-humanid/.

23 Sentencia del Tribunal Supremo sobre el caso Guatemala por Genocidio, Sentencia No 327/2003,Appeal Roll 115/2000, Case 331/99, File 162/2000 (Tribunal Supremo, Second PenalChamber, 25 February 2003) (Spain). Available online at www.derechos.org/nizkor/guatemala/doc/gtmsent.html.

24 Roht-Arriaza, N, Guatemala Genocide Case,American Journal of International Law, vol100, 2006, p 207.

25 Roht-Arriaza, fn 24 above, p 211.26 See Brewer-Caras, A R, Some Aspects of the Amparo Proceeding in Latin America as a

Constitutional Judicial Mean Specifically Established for the Protection of HumanRights, Paper presented at Colloquium in International and Comparative Law, University



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Accountability (CJA), a US-based NGO that had experience in litigatingtransnational cases through its work using the US Alien Tort Statute,27 cameinto the case representing several families of victims. CJA and its international

attorney Almudena Bernabeu would soon put together and lead an internationallegal team for this new phase of the case.Fortunately, despite the inability to take formal statements, Judge Pedraz did

not leave Guatemala entirely empty-handed. He met informally with severalrepresentatives of victims organizations who told their stories and detailed thelack of justice in the local courts. In particular, they told the judge that anassociation of survivors, the Association for Justice and Reconciliation (AJR),had been trying to get the local prosecutors office to investigate the same setof defendants since 2000, but that aside from a few early depositions of otherretired military officers, nothing had been done.28 Guatemala, like mostcountries in Latin America, changed its criminal procedure during the 1990s

to make it more prosecutor-driven; only the prosecutors office (MinisterioPblico) rather than victims or judges could press forward with an investigation.And despite millions in international aid, training and support,29 the prose-cutors office remained ineffective, disrespectful to victims and vulnerable tothreats and corruption, and was reportedly infiltrated by military intelligenceand criminal networks of various sorts.30

In any event, Judge Pedraz returned to Spain, and a month later, on 7 July2006, issued charges and international arrest warrants for the defendants oncharges of genocide, state terrorism, torture and related crimes.31 In early

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of Maryland School of Law (October 2007). Available online at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1001&context=iclc_papers.

27 28 USC 1350 (2006). The statute allows for civil suits in US federal courts by aliens fortorts in violation of the law of nations or a US treaty.

28 The AJR case was brought by a Guatemalan human rights group, the Center for LegalAction for Human Rights, in two phases: in 2000 against officials of the Lucas Garciaregime and in 2001 against those of the subsequent Rios Montt regime. Case No 3920-2000, Ministerio Pblico, Guatemala (on file with authors). Although the complaints areunpublished, information (in Spanish) on them is available online at www.caldh.org.

29 See, e.g. World Bank Group, Guatemala Judicial Reform Project. Available online athttp://go.worldbank.org/INV9FVR420.

30 Peacock, S and Beltrn, A, Hidden Powers in Post-Conflict Guatemala: Illegal Armed Groupsand the Forces behind Them, Washington DC: Washington Office on Latin America,September 2003, pp 4344. Available online at http://cgrs.uchastings.edu/pdfs/HiddenPowersFull.pdf. According to the US State Department Country Report for 2006: Whilethe constitution and the law provide for an independent judiciary, the judicial systemoften failed to provide fair or timely trials due to inefficiency, corruption, insufficientpersonnel and funds, and intimidation of judges, prosecutors, and witnesses. The majorityof serious crimes were not investigated or punished. Many high-profile criminal casesremained pending in the courts for long periods as defense attorneys employed successiveappeals and motions. US Department of State, Country Reports on Human Rights Practices:Guatemala 2006, 6 March 2007, Section 1.e. Available online at www.state.gov/g/drl/rls/hrrpt/2006/78893.htm.

31 See fn 2 above.



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November, Guatemalas Fifth Tribunal for Crime, Drug Trafficking andEnvironmental Offences (the local trial court) executed four of the six arrestwarrants. Two others were rejected for technical reasons.32 Although the

technical problems were cleared up soon after, those warrants have never beenexecuted.33 One of them was for General Ros Montt, the former head of statefrom 1982 to 1983, who by that time was running for Congress, and the otherfor General Benedicto Lucas, former army chief of staff from 1978 to 1980. Thefour defendants reacted differently: one fled, one holed himself up in his house,one was in a military hospital and was put under guard, and the other turnedhimself in and also ended up in a military hospital. They all, however, hiredlawyers in Guatemala to contest the extraditions.

On 22 November, Judge Pedraz followed up with formal extradition requests.34

He cited an 1895 Extradition Treaty between Guatemala and Spain and explainedin detail why each article of the treaty applied in this case. He also discussed the

crime of genocide and attached a copy of the 2005 Spanish Constitutional Courtdecision to show that he had jurisdiction under Spanish law.35

9.3 The parallel advantages of hybrid tribunals andtransnational prosecutions

The effort to use Spanish courts to bring high-ranking Guatemalan securityforce officers to justice, especially from 2006 onwards, exemplifies how, in manyways, transnational litigation shares some of the advantages of litigation inhybrid tribunals. In particular, both emphasize creating new movement within

domestic legal systems and lowering costs. In other aspects, however, especiallythe ability to execute arrest warrants, the litigation has shared the disadvantagesof other forms of international criminal prosecution.

9.4 Training local lawyers in international law andcomplex criminal investigation

One of the often-mentioned benefits of hybrid tribunals is their ability to impactlocal jurisprudence and train local staff, both lawyers and judges. By creating

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32 Guatemala does not typically publish lower court pre-trial decisions, hence no publishedrecord of these rejections is available. (Reference documents on file with authors.)

33 The warrants were initially rejected because of a clerical error; the ones that reachedGuatemala included only the allegations surrounding the 1980 Spanish Embassy massacre,not the genocide charges stemming from the entire 19791985 period. New, correctedarrest orders were sent immediately, but by that time the case was suspended due to thefirst of manyamparos. The lower court judges then left them pending until the legal issuesaround the executed warrants could be settled, which is why they were never executed. SeeCalderon, fn 6 above.

34 Juzgado Central de Instruccin No 1, Diligencias Previas 331/99, Auto (Decision), 22November 2006 (on file with authors).

35 Auto (Decision), 22 November 2006.



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mixed national-international judicial panels and mixed professional staffs,hybrid courts combine the expertise and legitimacy of international judges andstaff with the knowledge of local law and legal culture and the long-term

commitment to the country of national personnel. International investigationsand prosecutions provide on-the-job training for national lawyers in inter-national law and complex criminal cases.36 They also, at least in theory, help toimbue newly reformed or (re)created justice systems with the ethics and spiritof the rule of law. In practice, that theoretical promise has not always material-ized. Critics have pointed out that most of the substantive legal jobs may well,under time constraints, go to outsiders, that the judges are not necessarilyqualified in international law nor willing or able to impart whatever expertisethey have to local counterparts, and that links to the local bar may be tenuousat best.37

Compared to the creation of hybrid institutions, transnational prosecutions

can also provide advantages, including some of the same training and normdiffusion benefits. Early transnational prosecutions involving internationalcrimes like genocide, torture and other crimes against humanity often incor-porated exiled lawyers from the state where the atrocities took place. Nationalhuman rights and legal groups served more as information sources, witness-seekers and media channels, while the litigation team was based largely abroad.This distinction was true, for instance, of the earlier cases in the Spanish courtsagainst the high command of the Argentine and Chilean militaries for theircrimes during the 1970s.38 Subsequent cases, including the ongoing effort toprosecute former Chadian dictator Hissene Habr in Senegal and Belgium39

and the attempt to prosecute high-ranking US officials in German courts,40

involved the creation of complex multinational legal teams. The Guatemalancase followed and elaborated on this approach.

In the Guatemalan case, Rigoberta Mench had been initially represented inSpain by labour and criminal lawyers who focused on the validity of Spainsjurisdiction. Once the genocide case was reopened, and after the judges visitto Guatemala in June 2006, a new legal team led by the CJA began workingwith lawyers in Menchs local foundation offices in Guatemala to develop theevidence for the Spanish case. At the same time, the team began dealing withthe extradition and rogatory commission cases in the Guatemalan courts.

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36 See, e.g. Dickinson, fn 9 above, p 307.37 See, e.g. Higonnet, fn 9 above, pp 368369.38 For a narrative of those cases, see generally Roht-Arriaza, fn 12 above.39 The International Committee for the Trial of Hissene Habr included Human Rights

Watch Special Counsel Reed Brody and human rights groups and lawyers from Chad,Senegal, the United Kingdom and France. See Brody, R, The Prosecution of HisseneHabr: An African Pinochet,New England Law Review, vol 35, 2001, p 324.

40 See Center for Constitutional Rights, German War Crimes Complaint Against DonaldRumsfeld, et al. Available online at http://ccrjustice.org/ourcases/current-cases/german-war-crimes-complaint-against-donald-rumsfeld%2C-et-al. (describing the case broughtagainst Donald Rumsfeld and others for torture in Abu Ghraib).



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Eventually, the legal team grew to include local counsel in Spain with experiencelitigating universal jurisdiction cases, lawyers in the Hague and San Franciscowith knowledge of both international and national criminal law, law students

at the University of California-Hastings and Harvard human rights legal clinics,and the Mench Foundation lawyers in Guatemala (who were co-ordinatingwith other legal human rights groups there).

These international and national lawyers have strategized and workedtogether on pleadings before both the Spanish and Guatemalan courts and,most recently, before international human rights bodies. There have beenadvantages to this approach: rather than a (potentially paternalistic) one-waytransmission of knowledge from the international lawyers to the local ones,there has been a partnership wherein both sides learn. The international lawyershave had to grapple with how to present international law arguments in the(rather byzantine, at least by US standards) Guatemalan legal system, while

the national lawyers get the experience and access to non-Spanish languageresearch materials of the internationals. Interestingly, prior experience withcivil Alien Tort cases in the United States has proven particularly useful inthinking about how to protect witnesses from retraumatization and givecomplainants an active protagonistic role in the proceedings and in witnesspreparation, selection and presentation. When it came time to present witnessesbefore the Spanish judge, for example, the judge accepted that witnesses beasked specific questions by their lawyers, a style of deposition more familiar toUS trial lawyers than to the traditionally less oral, less structured style of Spanishpre-trial procedure.

Working with witnesses has also opened the way for incorporating new,young Guatemalan lawyers into complex criminal cases. Once the case beganmoving forward in Spain, the legal team laid out a strategy for proving genocide.Building on the findings of the CEH, they put together witness lists involvingpeople from the hardest-hit areas and people who could testify about differentaspects of genocide: massacres, bombings, forced displacement, destruction ofcommunity structures, and targeting of local religious and secular authorities.The team also added new complainants who were survivors and eyewitnessesto massacres. Most of the attorneys working with these witnesses to accompanythem to give testimony before the Spanish court have been young Mayan womenwho can communicate with the witnesses in the witnesses own language (which

is generally not Spanish). These young lawyers will return to Guatemala withexposure to methods of investigation, witness preparation and criminalprocedure that will inform their work at home. Through this joint work, thesecases begin to build up a cohort of international human rights lawyers equallyat home in their national systems and with international law and with enoughknowledge of foreign legal systems to be able to conceive of multi-layeredstrategies that move from the national to the international and back.

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9.5 Making local courts engage with international law

A related advantage of hybrid courts is their ability to foster local ownership ofjustice processes. By combining national and international law and personnel,

such courts may foster the (re)construction of a viable domestic legal systemwhich may act as a source of justice rather than of oppression or corruption.Hybrid courts may be able to reflect local culture, language and law whileremaining anchored to the core values of international human rights andhumanitarian law.41 Because proceedings take place locally, the affectedpopulation and the press can observe them. On the other hand, hybrids, likenational courts generally, are for these same reasons no doubt more vulnerableto threats, political influence and corruption than their purely internationalcounterparts.42

Transnational investigation and prosecution can in theory penetrate national

legal systems in ways similar to those posited for hybrid courts, but they arealso subject to limitations. A case in point is the intense judicial activitysurrounding Judge Pedrazs 2006 arrest orders and extradition requests. Theseorders and requests set off a furious battle in the Guatemalan courts. The localcourts had to decide whether to execute the arrest warrants, whether to grantextradition43 and how to deal with requests for judicial co-operation involvingwitnesses, defendants, documents and assets. Along the way, the local courts hadto grapple with complex arguments about the propriety of universal juris-diction, the nature of international crimes and the role of international law inGuatemalas constitutional order. Each of these involved a combination of localand international law.

In general, the rules on extradition are designed to deal with common crimes,not international crimes like genocide. Most extradition treaties, including theSpainGuatemala Treaty,44 have a similar set of rules. The alleged acts must becriminalized in both legal systems, and the requested state must only satisfy

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41 See, e.g. Higonnet, fn 9 above, p 411.42 See, e.g. Justice Initiative, Security Council Must Address Costs of Moving Taylor Trial

to the Hague, 4 April 2006. Available online at www.soros.org/initiatives/justice/focus/international_justice/news/taylor_20060404 (reviewing the debates around removing theCharles Taylor trial in the Sierra Leone Special Court to the Hague due to security concerns

in West Africa); Justice Initiative, Corruption Allegations at Khmer Rouge Court MustBe Investigated Thoroughly, 14 February, 2007. Available online at www.soros.org/initiatives/justice/focus/international_justice/news/cambodia_20070214 (accessed on 5April 2008) (for an example of concerns about the lack of independence of the CambodianExtraordinary Chambers).

43 Even if the courts allowed the extraditions to proceed, the Executive Branch would stillhave a chance to stop them at a later point. Ministerio de Relaciones Exteriores deGuatemala, El Procedimiento de Extradicin en Guatemala, DAJUT/SUAJ, pp 67. Availableonline at www.oas.org/juridico/MLA/sp/gtm/sp_gtm-ext-gen-procedure.pdf.

44 Tratado de Extradicin entre Espaa y Guatemala, signed on 7 November 1895, Gacetade Madrid, no 161, 10 June 1895; and Protocolo Adicional aclarando su articulo VII(23 February 1897).



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itself that the requesting state has jurisdiction under its own laws and has madeout the rough equivalent of probable cause; a full evidentiary showing is notrequired. Political crimes, and common crimes connected to them, are not

subject to extradition; however, the treaty does not define what constitutes apolitical crime. Also like many extradition treaties, the SpainGuatemala Treatydoes not require (but does allow) the extradition of nationals.45 GuatemalasConstitution also contains a prohibition on the extradition of nationals, but itsArticle 27 has an exception that seems tailor-made for this case: it excludesalleged crimes contained in treaties and conventions with respect to crimesagainst humanity or against international law.46

Even though the arrest orders came from a Spanish court, they would haveto be enforced through Guatemalan courts ordering the police to execute thewarrants. Extradition proceedings had the immense advantage of bypassing thepublic prosecutors office, which had long held up domestic proceedings and

was not considered particularly eager to move any of the armed conflict orgenocide cases along given their political sensitivity and complexity. If thecourts moved towards extradition, at the very least, that might embarrass theprosecutors office into action. Indeed, in July 2007 the prosecutors office beganthreatening to call witnesses in the Spanish Embassy massacre case of 1980, inwhat seemed to be a feeble attempt to pre-empt the Spanish proceedings byshowing they were prosecuting the case at home. This response vindicated thecomplainants legal strategy: by pushing for prosecution abroad, they couldprod the courts into acting at home, even if the prosecutors actual motivationwas to undermine the foreign proceedings.47

The defendants immediately filed writs ofamparo complaining that theirconstitutional rights had been violated by the local courts execution of thearrest warrants.48 The defendants argued, among other things, that the Spanishcourts were not a competent authority to issue an arrest warrant and couldnot exercise extraterritorial jurisdiction because Guatemalan sovereigntyforbade it. They further argued that the language of the extradition treatyreferred to those who had taken refuge in Guatemala, and that as Guatemalancitizens therefore they were not covered by the treaty, that the alleged crimeswere not covered by the treaty, and that the treaty was too old and outdated tobe effective. The trial court rejected these arguments and found that Spanishjurisdiction was proper.49 That decision was appealed, but the appeals court

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45 Tratado de Extradicin entre Espaa y Guatemala, Art IV.46 Guatemala Constitution (Constitucin Poltica reformada por Acuerdo Legislativo No 18-

93 del 17 de Noviembre de 1993), Art 27. Available online at http://pdba.georgetown.edu/constitutions/guate/guate93.html (authors translation).

47 For a fuller explanation of how this insider/outsider theory has worked in the case ofSpanish investigations into military dictatorships in the Southern Cone, see Roht-Arriaza,fn 12 above, chs 7 and 8.

48 For a description ofamparo, see text accompanying fn 26 of this chapter.49 Resolucin, Tribunal Quinto, No 2-2006, 28 March 2007 (on file with authors).



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sent the case back to the lower court.50 The trial court again found jurisdiction,and the appeals court, in October 2007, agreed.51 The court recognized that theextradition treaty was binding, that Spanish jurisdiction was proper, and that

the crimes at issue were of grave importance under international law and thussubject to extradition even though they were notand could not have been in1897listed as extraditable crimes in the treaty. The trial court also fined thedefendants lawyers for filing frivolous appeals.52

The defendants, throughout the process, filed challenge after challenge, someof them almost exact repetitions of earlier ones. The defendants repeatedchallenges suspended the proceedings over and over again, to the immensefrustration of the complainants. No one begrudged the defendants a legitimateright to defence, but as their lawyers refiled arguments that had already beenrejected over and over, it became clear that here, as in other criminal casesinvolving powerful defendants,53 the writ ofamparo had become a mechanism

for delay and abuse.As soon as the arrest warrants were announced, three complainants in the

Spanish caseRigoberta Mench, Jess Tec and Juan Manuel Gernimoasked for and were admitted to the case as intervenors (terceros interesados). Yetdespite their intervenor status, they were continually denied access to the file,notification of hearings and copies of relevant documents. By August 2007,they were frustrated and decided to file their ownamparo alleging violations oftheir rights as victims of human rights violations. Advised by the internationallegal team, they cited the jurisprudence of the Inter-American Commissionand Court on the right to the truth, the right to information, the right to

prompt and effective justice without excessive delay and the right to an inde-pendent tribunal.54 Shortly thereafter, the trial court agreed with them and

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50 Resolucin, Sala Primera de Apelaciones, No 2-2006, 1 June 2007 (on file with authors).51 The trial court found jurisdiction for a second time on 31 July 2007, and the appeals court

agreed on 26 October 2007. Sala Primera de la Corte de Apelaciones, Amparo 87-2006/543-2006, Sentencia, 26 October 2007 (on file with authors).

52 Amparo 87-2006/543-2006, Sentencia, 26 October 2007.53 The use of abusiveamparos was documented, e.g. in the Myrna Mack case, one of the few

cases in which the Guatemalan courts convicted military officers of killing. See FundacinMyrna Mack, Caso Myrna Mack,Resumen de las Audiencias ante el Tribunal Tercero de Sentenciadel 3 de Septiembre al 3 de Octubre de 2002. Available online at www.myrnamack.org.gt/

index.php/casomyrnamack/procesonacional/sentencias19932004. Guatemala does nottypically publish lower court pre-trial decisions, hence there is no public record of theseamparos. A bill has been pending in the Guatemalan Congress to reform theamparoprocedure.

54 See, e.g. IACtHR, Judicial Guarantees in States of Emergency, Art 27(2), 25 and 8,Advisory Opinion OC 9-87, Series A No 9, 6 October 1987, para 24. See also case ofBlakev Guatemala, Series C No 48, Judgment of 22 January 1999 (reparations), paras 61 and 63.The complainants also cited, as persuasive authority, cases of the Colombian SupremeCourt that balanced defendants due process rights against victims rights to truth andaccess to justice. Corte Constitucional de Colombia, Sentencia C-004/03, Demanda deInconstitucionalidad, 20 January 2003. Available online at www.corteconstitucional.gov.co/relatoria/2003/C-004-03.htm.



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ordered the case file to be released. The release was suspended when thedefendants filedyet anotherwrit ofamparo. Nonetheless, the offensive(rather than defensive) use of theamparo proceeding to claim rights as victims

under international law to limit the abusive use of dilatory motions is aninnovation in Guatemala. While the use of dilatory writs will, in the end, becurbed only by either legislation or a change in attitude of the higher courts,at least it established a precedent that victims do indeed have internationallyrecognized rights that must be given effect in local courts.

Through this complicated set of domestic proceedings, triggered by aninternational warrant, trial-level Guatemalan courts had to grapple withinternational law and compare their procedures and ways of thinking with thejurisprudence generated by international courts as well as other Latin Americancourts facing similar issues. Through the offensive use of the amparo writ,international lawin this instance concerning the rights of victimswas

brought into an area of domestic law where international law had not previouslybeen applied. In this way, transnational prosecutions allow local courts tobecome familiar with international law and to modernize and innovate, whileremaining grounded in local legal culture and practice.

9.6 Limits to effectiveness: the Constitutional Court decisionof December 2007 and the Spanish Judges response

On 12 December 2007, the GCC ruled that the Spanish arrest warrants wereinvalid and that defendants could not be extradited.55 The 60-plus page ruling

responded to yet anotheramparo, lodged by Guevara and Arredondo, againstthe constitutionality of the arrest warrants issued in November 2006. Theamparo questions only the validity of the arrest warrants, yet the GCC lookedbeyond that question to consider the validity of the entire extraditionproceeding. The ruling began by accepting that the 1895 extradition treatybetween Spain and Guatemala is still valid, but found that it must be inter-preted in light of the drafters intentions. Nothing in the treaty explicitly refersto extraterritorial jurisdiction, they noted, and the fact that the treaty speaksof those seeking asylum or refuge in another state indicates that the drafters werethinking about nationals of another state hiding in the requested state.56 Thetreaty, they argued, must be read in light of the territorial principle of the

criminal law. Therefore, they concluded, the treaty does not apply to crimescommitted within Guatemala.

The GCC added that it can look into Spanish law because it needed toconvince itself that the courts of the requesting country are a competent

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55 Sentencia del 12 de Diciembre de 2007, fn 5 above.56 Sentencia del 12 de Diciembre de 2007, paras 1517. This method of interpreting the

treaty is at odds with the method of treaty interpretation set out in the Vienna Conventionon the Law of Treaties (1980), 1155 UNTS 331, Art 31.



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authority under the Extradition Treaty.57 Although from 2005 onwards, Spainclearly had jurisdiction under Spanish law, the GCC asks whether the 2005Spanish Constitutional Court decision that allowed reopening of the full

investigation comports with international law.It concludes that universal jurisdiction cannot be maintained because itaffronts Guatemalan sovereignty. While Guatemala might recognize an inter-national tribunal, the GCC stated, it will not recognize the extraterritorialjurisdiction of another national court. Otherwise, it argued, one state would bejudging another states ability or willingness to prosecute without eitherSecurity Council or General Assembly approval. This line of reasoning is highlyproblematic, as it is in practice an action of judicial review of the decisions offoreign courts. In effect, the Guatemalan court disagrees with the Spanish courtsinterpretation of Spanish law. In addition, the GCC finds that extradition isimproper for other reasons: both Spain and Guatemala prohibit the extradi-tion of nationals. However, this is not strictly speaking true: Article 27 ofGuatemalas Constitution allows the extradition of nationals where the crimesare based on treaties and conventions with regard to crimes against humanityor international law.58 The GCC reads this reference, though, as limited tosurrender to international courts like the ICC, the ad hoc international criminaltribunals, or even the Inter-American Court of Human Rights (which has nocriminal jurisdiction).

In dicta, the GCC finds that the crimes alleged are common crimes connectedto political crimes because they are connected to the armed conflict, and thatthe constitution holds that citizens cannot be extradited for political crimes.59

This is legally incorrect: the Genocide Conventions Article VII specificallystates that genocide and the other acts enumerated in Article III shall not beconsidered as political crimes for the purpose of extradition.60 The GCC mayhave been signalling that it would consider these crimes in any domestic

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57 Tratado de Extradicin entre Espaa y Guatemala and Protocolo Adicional aclarando suarticulo VII, fn 44 above.

58 Guatemala Constitution, Art 27. The court adds that extradition of nationals is alsoimproper because there is no reciprocity, but this is also not strictly speaking true: wherea treaty requires it, Spain will extradite its nationals. Art 1, Ley 4/1985, de 21 de Marzo,

de Extradicin Pasiva. Available online at http://noticias.juridicas.com/base_datos/Penal/l4-1985.html.

59 Sentencia del 12 de Diciembre de 2007, fn 5 above, pp 2223 and 54.60 Convention on the Prevention and Punishment of the Crime of Genocide, Art VII. See also

Inter-American Convention on Forced Disappearance of Persons (1994), Art V, ILM, vol33, 1529 (The forced disappearance of persons shall not be considered a political offensefor purposes of extradition). The UN and Inter-American Torture Conventions alsorequire that torture be considered an extraditable offence. Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment (1984), General AssemblyResolution No 39/46, UN Doc A/39/51, Art 8(1) (1987) (torture must be extraditableoffence). See also Inter-American Convention to Prevent and Punish Torture (1985), OASTreaty Series No 67, Art 13 (1987).



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prosecution as subject to the Guatemalan Law of National Reconciliation, whichgrants limited amnesty to persons who have committed political crimes andcommon crimes connected to them.61 But Articles 4 and 8 of that law specifi-

cally exclude the type of crime alleged in the Spanish request.62

Along the samelines, the court characterizes the context of the case as a region-wide civil conflictover political and economic models, with external support on both sides andwhich pitted ethnic and indigenous people against each other. By so labellingthe conflict, the court implicitly rejects the charge of genocide.63

Finally, the court recognizes the obligation of the Guatemalan courts toinvestigate and prosecute under the principle ofaut dedere aut judicare (extraditeor prosecute) if extradition is denied and invites the complainants to submittheir evidence to the Public Prosecutor. This is a bit disingenuous, since thejudges know perfectly well that charges on these crimes have long been filedwith the prosecutor and have gone nowhere. However, the GCCs recognition

that the domestic system needs to prosecute is important. Now they need tofollow through.

As a result, the court finds that the suspects constitutional rights have beenviolated and orders the arrest warrants quashed. While technically the judgmentshould only apply to the two defendants who appealed, they make it extensiveto all of the other suspects as third-party interveners. There can be no appealfrom the decision.

The GCCs decision is clearly a setback for the complainants and forinternational law. It exemplifies some of the limits of a transnational litigationstrategy. In a climate of intimidation where judges are routinely bribed or

threatened into submission, where the legal system has been repeatedlycriticized for its ineffectiveness and for allowing rampant impunity, and wheresome (but not all) of the defendants still hold power,64 the defensive tone andnegative outcome of the case may have been inevitable. The willingness of thelower courts to go forward, the obvious errors and omissions of the GCCsjudgment, and even the length of time it took for the GCC to rule on the arrestwarrants despite several earlier opportunities to do so, are reasons for hope thatthere are some cracks in the faade of impunity. After all, early cases in theChilean and Argentine courts also featured more open lower courts, followedby conservative decisions rejecting international human rights law obligations

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61 Ley de Reconciliacin Nacional, fn 16 above.62 Ley de Reconciliacin Nacional, Arts 4 and 8.63 Sentencia del 12 de Diciembre de 2007, fn 5 above, p 50.64 Efran Ros Montt, e.g. was elected to Congress in 2007, in part as a stated attempt to gain

immunity from prosecution. As a Congressman, he has immunity for criminal actscommitted while in office, but that immunity does not preclude investigation by theSpanish courts. See Ins Bentez, Ex-Dictator on Rocky Road to Congressand Immunity, IPS(23 May 2007). Available online at http://ipsnews.net/news.asp?idnews=37871. As to theother defendants, one strategic consideration here is that they may have less current abilityto influence outcomes or to threaten participants than other, lower-ranked former officerswho may be more active in current criminal and intelligence networks.



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at the highest levels.65 Both the Chilean Supreme Court and the ArgentineSupreme Court have now invalidated or limited amnesty laws and approvedprosecutions for past crimes based in part on international law obligations.

The Achilles heel of all international justice efforts, whether at the ICC,through hybrid courts or through transnational prosecutions, is the inabilityto execute arrest warrants against powerful defendants. The ICC, for example,has been hamstrung by the inability to apprehend indicted Sudanese officialsaccused of crimes against humanity in Darfur, despite the existence of a SecurityCouncil referral and numerous resolutions condemning those crimes.66 TheICTY became effective only when NATO troops began to seek out and arrestsuspects.67 Hybrid tribunals, although theoretically less exposed to this problembecause they have the co-operation of the territorial government, have stillexperienced difficulties: Charles Taylor for many years could not be extraditedfrom Nigeria to the Sierra Leone Special Court.68 The Special Panels on SeriousCrimes in East Timor were similarly unable to prosecute members of Indonesiashigh command for atrocities in East Timor because Indonesia refused toextradite them.69 Transnational prosecutions will suffer from the same weaknesswhen the defendants presence is sought through extradition: unless he leaveshis country and travels to a third state willing to execute the arrest warrants,the defendant will be beyond the reach of the foreign court.

9.7 Aftermath and current prospects

Reaction to the GCC decision was not long in coming. International human

rights groups uniformly criticized the holding and the reasoning. Europeancivil society groups began pressuring their governments and EU institutionsto question the Guatemalan Governments commitment to human rights,70 aparticularly sensitive point given the installation of a new government in

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65 For description and analysis, see Roht-Arriaza, N and Gibson, L, The DevelopingJurisprudence on Amnesty, Human Rights Quarterly, vol 20, 1998, pp 843 ff.

66 UN News Centre, UN War Crimes Prosecutor Calls for Arrest of First Darfur Suspects(7 June 2007). Available online at www.un.org/apps/news/story.asp?NewsID=22826&Cr=sudan&Cr1=; Security Council Resolution No 1593, S/Res/1593/2005, 31 March 2005.

67 The two most wanted suspects at the ICTY are still at large, and NATO has been criticizedfor its inaction. See, e.g. Human Rights Watch, Balkans: Srebenicas Most Wanted RemainFree, 29 June 2005. Available online at http://hrw.org/english/docs/2005/06/29/bosher11228_txt.htm.

68 Liberia Seeks End to Taylor Exile, BBC News, 17 March 2006. Available online athttp://news.bbc.co.uk/1/hi/world/africa/4817106.stm.

69 David Cohen, Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Modelfor the Future?Asia Pacific Issues, no 61, East-West Center, August 2002, p 1. Availableonline at www.eastwestcenter.org/fileadmin/stored/pdfs/api061.pdf.

70 See, e.g. CIFCA (Copenhagen Initiative for Central America and Mexico), Urgente:Guatemala Anula el Proceso de Espana Contra los Militares Acusados de Genocidio (15 January2011) (on file with authors).



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January 2008 as well as ongoing negotiations for an EU-Central AmericanAssociation Agreement.71 Above all, human rights and humanitarian lawyerspointed out that if Guatemala was not going to extradite the suspects, it had

an international legal obligation to try them at home. That obligation wasexplicit under the UN and Inter-American Conventions against Torture andEnforced Disappearances as well as the Genocide Convention.72 It was also,quite obviously, not being fulfilled.

Most spectacularly, Spanish Judge Pedraz also responded to the GCCdecision. On 9 January 2008, he issued his own ruling condemning Guatemalaslack of co-operation and abandonment of its responsibilities under internationallaw.73 In strong language, the judge complained about the complete lack ofcollaboration on his requests for rogatory commissions and lambasted the GCCdecision as ignoring Guatemalas conventional and customary law obligationsto extradite or to prosecute, which the judge traced back as far as Grotius, as

well as the extradition treaty.74Judge Pedraz also recalled that genocide is a crime in international law that

cannot be labelled a political offence and found that Guatemala was alsoviolating an international treaty and customary law obligation to prevent andpunish the crime of genocide against the Mayan people. He concluded:

This resolution of the Constitutional Court, issued by the maximal judicialauthority, in light of the above-referenced facts and of the advanced age ofthe accused, together with the well-known fact that the level of impunityfor lesser crimes in Guatemala is among the worlds highest, confirms thestates intention not to investigate these crimes and bring those responsiblebefore the courts. This gives clear backing to impunity, ignoring the above-referenced international law and, therefore, placing Guatemala in the sphereof countries that violate their international obligations and disdain thedefense of human rights.75

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71 The European Union and the Central American countries are engaged in negotiation of acomprehensive Association Agreement, which is to include both political and economiccomponents including a free trade agreement. As part of those negotiations, on 15December 2003, the parties concluded an EU-Central America Political Dialogue and Co-operation Agreement, which states in Art 1(1): Respect for democratic principles andfundamental human rights, as laid down in the Universal Declaration of Human Rights,

as well as for the principle of the rule of law, underpins the internal and internationalpolicies of the Parties and constitutes an essential element of this Agreement. CE/AM-CENTR/en/1. Available online at http://ec.europa.eu/external_relations/ca/pol/pdca_12_03_en.pdf. For information on the negotiation process and goals, see The EUs Relationswith Central America: Overview. Available online at http://ec.europa.eu/external_relations/ca/index.htm (accessed on 15 March 2011).

72 Ley de Reconciliacin Nacional, fn 16 above, Arts 4 and 8.73 Auto dejando sin efecto las comisiones rogatorias a la Republica de Guatemala, Juzgado

Central de Instruccin No 1, Audiencia Nacional, Diligencias Previas 331/1999-10, 16January 2008. Available online at www.derechos.org/nizkor/espana/doc/pedraz1.html (inSpanish).

74 Auto dejando sin efecto las comisiones rogatorias a la Republica de Guatemala.



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Nonetheless, the judge wrote, the GCC decision showed the continued need forSpanish judicial authorities to investigate the alleged crimes. However, he wouldno longer rely on the Guatemalan courts, but would bring witnesses to Spain

to testify.76

In addition, he called on anyonevictims, witnesses, or othershaving information about the case to bring it directly to him through the properchannels.77 He thus opened up new possibilities for evidence gathering byvictims groups, complainants lawyers and others around the world.

In February 2008, witnesses began arriving at the Spanish court. They includedexperts, journalists and eyewitnesses from some of the areas of the country where,according to the CEH Report, acts of genocide were committed. The eyewitnessesdetailed massacres, rape, torture, bombings and persecution of massacre survivors,destruction of crops and livestock, and targeting of Mayan religious practices andcommunity authorities. They also named specific military officials, including thedefendants, and specified their role in these crimes.78 The witnesses spent a full

week telling the judge their story. This in itself can have reparatory effects.79The continuing political pressure and what is expected to be an ongoing

parade of witnesses will no doubt keep the issue in the public eye in Guatemala.Whether this translates into effective change in the attitude of Guatemalasprosecutors and judges is, at this point, unknown. It is of course more difficultfor such change to happen without at least a modicum of physical security forall those involved.80 However, the pressure has already apparently had someresult: on 25 February, Guatemalan President lvaro Colom announced that hewould order the military to open up its archives from the armed conflict periodand turn them over to the Human Rights Ombudsman.81

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75 Auto dejando sin efecto las comisiones rogatorias a la Republica de Guatemala, s 6(translation by authors).

76 In another innovation, the Spanish Public Prosecutor designated some of the eyewitnessesas witnesses for the Spanish Crown, which allows Spain to pay their travel expenses. Giventhe modest economic status of almost all of the witnesses, this made it possible for them totestify. Unpublished decision of Public Prosecutor, Audiencia Nacional.

77 Unpublished decision of Public Prosecutor, Audiencia Nacional. The proper channels forsubmitting additional information or evidence presumably would include Spanishconsulates throughout the world.

78 Ortz, G, Declaran en Espaa por Genocidio,La Hora, 5 February 2008. Available onlineat www.lahora.com.gt/notas.php?key=25579&fch=2008-02-05.

79 There is extensive literature on truth-telling and its potential salutary effects for somevictims. See, e.g. Hayner, P B, Unspeakable Truths: Confronting State Terror and Atrocity,New York: Routledge, 2001. On the other hand, there is a risk that victims will end upfrustrated by the continued inability to acquire custody over the defendants and thus toproceed to full trial and sentencing. The witnesses were well aware of that possibility andchose to testify nonetheless.

80 On 5 March 2008, unknown assailants shot at the house of the director of the FundacinNueva Esperanza, Guillermo Chen. The Fundacin represents some of the witnesses andcomplainants involved in the Spanish case. Amnesty International, Urgent Action, PublicAI Index 34/006/2008, 7 March 2008.

81 Antonio Ordonez, Presidente Colom Ordena Abrir Archivos del Ejrcito,Prensa Libre,25 February 2008. Available online at www.prensalibre.com/noticias/Presidente-Colom-ordena-archivos-Ejercito_0_163783856.html.



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In April 2008 the proceedings took yet another turn. Guatemalan trial courtjudge Jos Eduardo Cojuln, whose chambers had received Judge Pedrazsrepeated requests for a rogatory commission to interview witnesses, decided

that he would honour those requests. He reasoned that the GCCs decision hadno bearing on his international judicial co-operation obligations, and that,while he could not allow Judge Pedraz to come to Guatemala, he could conductthe interviews himself and forward the results to the Spanish court. He thus setout a demanding schedule of witness interviews, which began on 17 April.When witnesses told him they could not appear because they had no funds totravel to the capital, he agreed to transport them in order to take theirstatements. He rejected the predictableamparos from the defendants.

In any case, along with internal pressure, the Spanish case has alreadychanged the national equation, bringing the issue again to the forefront ofnational consciousness. Unless the GCC changes its mind or one of the named

defendants (or other defendants named in the future) leaves the country,the case may never come to trial; Spain does not allow trial in absentia.82

Nonetheless, the judge will continue taking testimony and eventually, if theevidence is sufficient, is expected to issue individualized indictments (autos de

procesamiento) against these and, perhaps, other defendants. These indictmentswould set out the evidence that the charged crimes were committed and thatthe defendants were responsible, and at a minimum, they would serve as avaluable historical record and a validation of the witness testimony. Theindictments would also serve as a powerful tool for lawyers, victims groups andeven, if it so chose, the Executive Branch in Guatemala to pursue new avenues

of investigation and prosecution.

9.8 Pushing from the present: the internationalcommission against impunity in Guatemala

The Spanish litigation is not the only attempt to overcome the legacy ofimpunity in Guatemala. As noted at the beginning, this impunity extendsbeyond the former military and security force officials responsible for pasthuman rights violations to encompass present common crime, including (andespecially) that committed by powerful networks of drug traffickers, smugglersof all sorts, extortion gangs and car theft rings. In part, these are the same

people: many of the military intelligence and security force networks involvedin human rights violations transformed themselves, under weak civilian

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82 In 2009 Spain reformed its universal jurisdiction law, narrowing its applicability to casesinvolving Spanish victims or defendants, cases where the defendant is found in Spain, andthose where Spain has a relevant connection. The reform also requires a showing that thecase is not being adequately prosecuted elsewhere. The reform does not change the Spanishcourts ability to hear the Guatemalan case, which has both Spanish victims and relevantconnections. See, generally, Las ONG Afirman que la Reforma de la ley es un paso haciala impunidad, El Mundo, 29 June 2009.



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governments, into criminal networks.83 So impunity for past crimes andimpunity in the present are inextricably bound together.

The result is a pervasive sense of insecurity, an almost completely disfunc-

tional prosecution service, intimidation and corruption of judges and prose-cutors, and many powerful people with a vested interest in maintaining thesystem in its current ineffective form. Most crimes are never even investigated;only 2 per cent are ever resolved.84 Even in the few cases where convictions arewon, the defendants are often freed by mobs, mysteriously disappear beforeserving time or are allowed to run rackets in prison.85

On 16 January 2003, NGOs together with the Guatemalan Human RightsOmbudsman (Procurador) Sergio Fernando Morales Alvarado proposed thecreation of a Commission to Investigate Illegal Groups and Clandestine SecurityOrganizations (CICIACS). The proposal responded to the clamor which hasbeen caused by the assassinations, threats and kidnappings of human rightsdefenders, judges, magistrates, politicians, lawyers, Congressional advisers,political leaders, journalists, priests, indigenous representatives and otherpeople. 86 The president presented a bill to Congress creating CICIACS, butan agreement between the government and the United Nations to establishCICIACS was torpedoed when the GCC found it unconstitutional because theGuatemalan Constitution reserves a prosecutorial role for the Public Prosecutoralone.87 It took another two years to modify the plan to meet those objections,but on 11 December 2006 the revised agreement between the United Nationsand the Guatemalan Government creating a new version of CICIACS, knownas CICIG, was signed. The agreement was ratified by the Guatemalan Congress

in August 2007 and entered into force on 4 September 2007.88

From the United Nations perspective, the commitment to help end impunityat the national level in this manner is an innovation. CICIG is not a truthcommission, nor a special international tribunal, nor a classical technical

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83 e.g. the Bush administration revoked the visas of two former chiefs of military intelligencebecause of their links to drug trafficking. Smyth, F, Guatemala, Home of Powerful DrugRunners,Nieman Watchdog, 20 November 2005. Available online at www.niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=00152.

84 Daniel, F J and Rosenberg, M, Crime-Ridden Guatemala Divided in Vote,Reuters, 4November 2007. Available online at www.reuters.com/article/latestCrisis/idUSN03610855.

85 e.g. Captain Jos Antonio Solares was convicted of ordering a massacre in Ro Negro, buthas never been found even though he continues to reside at home in plain sight. SeeADIVIMA pide que se cumpla la ley y se ejecute la orden de aprehensin dictada contra el CapitnJos Antonio Solares por asesinato y genocidio (October 2004). Available online at www.derechos.net/adivima/es/reports.htm.

86 Garretn, R, CICIG: An Innovative Mechanism, Human Rights First (2007). Availableonline at www.humanrightsfirst.org/wp-content/uploads/pdf/07730-hrd-garreton-article-translation.pdf (unofficial translation).

87 Garretn, fn 86 above; GCC, decision of 8 May 2007, Expediente 791-2007.88 Secretary-General Appoints Head of Probe Into Illegal Armed Groups in Guatemala,

UN News Centre, 14 September 2007. Available online at www.un.org/apps/news/story.asp?NewsID=23820&Cr=guatemala&Cr1=.



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assistance programme, but rather is fashioned to respond to critical needs notalways met by those kinds of measures.89

CICIG is to determine the existence of illegal security groups and clan-

destine security organizations, their structure, forms of operation, sources offinancing and possible relation to state entities or agents and other sectors thatthreaten civil and political rights in Guatemala, in conformity with theobjectives of this Agreement,90 collaborate with the state in the dismantlingof these groups, promote the investigation, criminal prosecution and punish-ment of those crimes committed by their members, and recommend theadoption of public policies for eradicating such groups and preventing their re-emergence.

To accomplish its goals, CICIG cannot directly prosecute crimes, but caninitiate criminal complaints, provide information to the Prosecutors Officeand act as a complementary prosecutor (querellante adhesivo) in criminal cases.91

It can subpoena documents, hire its own staff of investigators, file disciplinarycomplaints against public servants, guarantee confidentiality to witnesses andpublish its results. On the other hand, the Commission is weakened by itsinability to compel testimony directly and by its dependence on the PublicProsecutor, who is the only person who can actually take the cases to court. Italso depends on the Guatemalan courts to act once the cases are beingprosecuted.

CICIG has proven important in investigating some notorious cases and inunravelling some of the connections among political elites, narco-traffickersand large-scale corruption. It has also played an important political role: when

President Colom attempted to appoint a new Attorney General with allegedlinks to child-smuggling rings, then-CICIG Commissioner Carlos Castresanaresigned in fury. His public resignation prompted the courts to invalidate theappointment, and eventually Colom appointed a new Attorney General drawnfrom the small number of human rights lawyers in Guatemala.

In its current form, CICIG will not focus on past crimes arising from the1970s and 1980s, although there is no explicit limitation in the mandate.However, to the extent the organizers and leaders of illegal security groups andclandestine security organizations are connected to, or one and the same as,

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89 CICIG, Background, Nature and Objectives of CICIG (2008) (unpublished document on filewith authors). See also ONU en Guatemala, La CICIG Est Oficialmente Instalada enGuatemala, available online at www.onu.org.gt/.

90 Agreement between the United Nations and the State of Guatemala on the Establishmentof an International Commission against Impunity in Guatemala, 12 December 2006, Art 1.Available online at http://cicig.org/uploads/documents/CICIG_AGREEMENT_EN.pdf.These groups are defined as those that:(i) commit illegal acts in order to affect the full enjoyment and exercise of civil and

political rights; and(ii) are linked directly or indirectly to agents of the state or have the capacity to generate

impunity for their illegal actions. Art II, para (1)(a).91 Agreement between the United Nations and the State of Guatemala, fn 90 above.



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former military officers implicated in human rights violations or genocide, theSpanish investigation and CICIGs work may end up overlapping.

9.9 Epilogue: the cases in the United States and Canada

As the case in Spain continued, in May 2010 a new set of cases showed yetanother aspect of the complexities of international justice. The US Governmentarrested Gilberto Jordan, a member of an elite fighting unit of the Guatemalanarmy (known as the kaibiles), on charges of lying on his application to becomea US citizen. Jordan, who had settled in southern Florida, was tried andconvicted of failing to disclose his military service and participation in amassacre in the hamlet of Dos Erres. In December 1982, members of the kaibilesstormed Dos Erres and systematically killed over 200 men, women and children.Soldiers bludgeoned villagers with sledgehammers and threw them down a

well and raped women and girls before killing them. Jordan admitted tothrowing a baby down the well. He was sentenced to 10 years in prison.

The case demonstrates a new determination by the United States to prosecutecases of human rights offenders found in the country. The investigations werecarried out by the Immigration and Customs Enforcements Human RightsViolators and War Crimes unit, and prosecuted by a unit in the JusticeDepartment that in the past focused on hunting Nazis. The decision toprosecute on fraud charges constitutes a vast improvement over past US practice,which was to deport quietly human rights violators found in the United States,without any concern for whether they would be prosecuted in their home

countries. In a few more recent cases, the US Government has co-ordinatedwith local prosecutors before returning deportees accused of rights violations,but the practice has not been consistent.

Still, while a 10-year conviction for Jordan is a significant step forward, it isnot based on a conviction for the underlying crimes, but only for fraud. Thishas very different moral implications, even though the practical result may beinitially similar. The US law allows for criminal prosecution of those found inthe United States for torture or genocide, no matter where committed.92

However, US authorities have been reluctant to use these authorities to deal withcrimes committed in the 1980s, presumably on grounds that doing so wouldviolate the principle of legality (no ex post facto prosecutions). This may be

incorrect from the perspective of international law,93 but may make sense fromthe perspective of risk-averse criminal prosecutors also no doubt concernedabout potential prosecutions of US officials abroad.

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92 18 USC 1091 (2007) (genocide); 18 USC 2340 (1994).93 See, e.g. International Covenant on Civil and Political Rights, Art 15; and European Court

of Human Rights,Kononov v Latvia, Application No 36376/04, Grand Chamber Judgmentof 17 May 2010.



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Thus, when another of the accused in the Dos Erres massacre, Jorge SosaOrantes, turned up in Canada in January 2011, the United States asked for himto be extradited to the United States to stand trial on fraud charges stemming

from his naturalization proceedingshe too had neglected to mention hisparticipation in the massacre. Advocates began clamouring for him to be triedin Canada on the underlying charges rather than returned to the United Statesto be tried on charges that would, at most, result in a sentence like that facedby Jordan. And in March 2011, lawyers in the Spanish litigation asked thejudge for an arrest warrant for Sosa, to be followed by an effort to extradite himto Spain. The Canadian Government will have to sort out the different possi-bilities, based on a calculus that includes the nature of the underlying charges,the ties to the forum states and the international legal obligations of eachpossible venue.

In Guatemala, the Dos Erres case has been before the courts since 1994, when

the bodies were exhumed. Continued inaction led the families to bring the caseto the Inter-American Court, which in 2009 ordered the government to put anend to dilatory tactics and bring the case to trial.94 The Guatemalan SupremeCourt then ruled that the prosecutors office should proceed; however, a monthlater the investigation was again halted due to yet another series of motions for

amparo filed by the defendants and accepted by the Constitutional Court. At thistime, therefore, the possibilities of moving the case forward at homeespeciallyagainst those who gave the orders, not just those who carried them outwilldepend on continued outside pressure.

9.10 Conclusion

Impunity remains a core problem of post-conflict state building. Guatemalaexemplifies the process by which impunity for the crimes of the past begetsmore impunity in the present; the two are linked. Early efforts to combatimpunity worldwide focused largely on the creation of new global institutionslike the ad hoc international criminal tribunals and the ICC. As the limitationsas well as the strengths of those institutions have become clearer, a morediversified and complex set of responses, grounded in the particular realities ofeach state, have begun to proliferate. In particular, hybrid courts, with explicitgoals that include strengthening domestic legal systems and training local

lawyers in international criminal law, have emerged. Transnational prosecutionscan serve many of the same functions as these hybrid tribunals, although theysuffer from the same weaknesses as other international criminal justice mechan-isms in being able to apprehend suspects.

Moreover, international investigatory commissions and transnationalprosecutions, like those discussed here with respect to Guatemala, can play

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94 Inter-American Court of Human Right, case of the Las Dos Erres Massacre v Guatemala,Series C No 211, Judgment of 24 November 2009.



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complementary roles in catalyzing changes in domestic ability and the will toinvestigate and prosecute the powerful. The success of these mechanisms, likethat of international prosecutions more generally, should be measured not only

(or even principally) by how many convictions they secure, but at how wellthey succeed in changing the possibilities for justice at home.

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many roads to justice

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